PRYOR v. YATAURO et al
Filing
5
OPINION. Signed by Chief Judge Jerome B. Simandle on 7/31/2012. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
DENNIS PRYOR,
:
:
Hon. Jerome B. Simandle
Petitioner,
:
:
Civil Action No. 12-1427 (JBS)
v.
:
:
MEG YATAURO, et al.,
:
:
OPINION
Respondents. :
:
APPEARANCES:
DENNIS PRYOR, #10127A
Adult Diagnostic and Treatment Center
8 Production Way - 2 Wing
Avenel, New Jersey 07001
Petitioner Pro Se
SIMANDLE, Chief Judge:
Dennis Pryor filed a Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254(a) challenging a judgment of
conviction entered in the Superior Court of New Jersey on May 3,
1984.
On March 28, 2012, this Court dismissed the Petition as
untimely, denied a certificate of appealability, permitted
Petitioner to file a statement showing that the Petition is not
time barred, and terminated the case, subject to reopening.
April 24, 2012, Petitioner filed a motion to reopen.
On
For the
reasons expressed below, this Court will reopen the case, vacate
the Order of dismissal, reconsider whether the Petition is time
barred, again dismiss the Petition as untimely, and deny a
certificate of appealability.
I.
BACKGROUND
Petitioner challenges a judgment of conviction entered in
the Superior Court of New Jersey, Law Division, Salem County, on
May 3, 1984, after a jury found him guilty of second-degree
burglary, third-degree possession of a weapon for an unlawful
purpose, and first-degree aggravated sexual assault.
The Law
Division imposed an aggregate sentence of life imprisonment with
25 years of parole ineligibility.
See State v. Pryor, 2010 WL
5173811 *1 (N.J. Super., App. Div., Dec. 22, 2010).
Petitioner
appealed, and on November 19, 1986, the New Jersey Superior
Court, Appellate Division, affirmed the conviction and the terms
of the sentences, except directed the trial court to re-sentence
Petitioner to the ADTC, pending the special classification
committee determining that he could no longer benefit from sex
offender treatment, in which case, he should be returned to state
prison.
Id.
The New Jersey Supreme Court denied certification
on February 6, 1987.
State v. Pryor, 107 N.J. 96 (1987) (table).
In September 1990, Pryor filed a pro se PCR petition
challenging his extended term sentence.
5173811 at *1.
See Pryor, 2010 WL
The Law Division denied relief, and on May 25,
1993, the Appellate Division affirmed.
Id.
The New Jersey
Supreme Court denied certification on September 10, 1993.
State v. Pryor, 134 N.J. 483 (1993) (table).
2
See
On September 9, 2008, Pryor filed a second pro se PCR,
seeking again to vacate the extended term.
5173811 at *1.
See Pryor, 2010 WL
By order filed June 24, 2009, the Law Division
denied relief without an evidentiary hearing.
Id.
Pryor
appealed, and on December 22, 2010, the Appellate Division
affirmed.
Id. at *2.
The New Jersey Supreme Court denied
certification in February 2012.
(Dkt. 4 at 2.)
Petitioner executed the § 2254 Petition, which is presently
before this Court, on March 1, 2012.
filing on March 2, 2012.
The Clerk accepted it for
The Petition raises four grounds:
Ground One: SIXTH AMENDMENT (RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL.)
Supporting Facts: Ineffective assistance of
Counsel, both trial and appellate.
Petitioner established a prima facie case
when he proved that the judge considered
cases from a too remote period, under and old
law, to be used during trial; counsel failed
to object to using persistent offender
statute when the alleged aberrant behavior
was due to what is now considered a mental
abnormality, and cannot be held against him
in a court of law.
Ground Two: SUBSTANTIVE DUE PROCESS, (14TH
AMENDMENT, U.S. CONSTITUTION); CRUEL AND
UNUSUAL PUNISHMENT, (8th AMENDMENT, U.S.
CONSTITUTION)
Supporting Facts: Defendant received an
illegal sentence contrary to both the prior
Administration of Civil and Criminal Justice,
N.J.S.A. 2A, and the Code of Criminal
Justice, passed by the State Legislature in
1979, known as N.J.S.A. 2C. The sentence
does not conform to either code due to the
fact that factors were used to determine a
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sentence that were already inherent in the
charging of the crime itself, thereby doublecounting many of the factors.
Ground Three: PROCEDURAL DUE PROCESS: (14th
AMENDMENT TO THE U.S. CONSTITUTION)
Supporting Facts: Defendant/Petitioner was
not given an evidentiary hearing after
establishing a prima facie case of
ineffective assistance of counsel on both the
parts of trial counsel and appellate counsel.
It is established that an attorney must fully
investigate any claims a defendant makes in
order to protect his rights against
constitutional violations, and effective
counsel should conduct a full investigation
of all facts relating to the crime(s) charged
against him. This was not done, and is borne
out by the trial transcripts.
Ground Four: PROCEDURAL DUE PROCESS:
AMENDMENT TO THE U.S. CONSTITUTION)
(14th
Supporting Facts: The trial court failed to
recognize or acknowledge the mitigating
factors inherent in its own presentence
report as submitted by the probation
department and did not take into account
these mitigating factors or the impact they
had on petitioner’s case and sentence.
(Dkt. 1 at 5, 6, 8, 9.)
On March 27, 2012, this Court dismissed the Petition as
untimely.
This Court reasoned:
[T]he applicable limitations provision is §
2244(d)(1)(A). Pryor’s judgment of conviction became
final on May 8, 1987, when the time to file a petition
for certiorari expired. See 28 U.S.C. § 2244(d)(1)(A);
Wali v. Kholi, 131 S. Ct. 1278, 1282 (2011). Because
Pryor’s conviction became final prior to the effective
date of the AEDPA on April 24, 1996, his one-year
limitations period began on April 24, 1996. See
Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003);
Nara v. Frank, 264 F.3d 310, 315 (3d Cir. 2001); Burns
4
v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Absent
statutory or equitable tolling, the limitations period
expired 365 days later on April 23, 1997. Id.
There was no statutory tolling during the 365-day
period ending April 23, 1997, because the New Jersey
Supreme Court denied certification on Pryor’s first PCR
petition on September 10, 1993 (before the year
started), and Pryor did not file his second PCR
petition until September 9, 2008 (after the year
ended).
As to equitable tolling, the Petition itself asks the
petitioner to explain why the Petition is not time
barred under 28 U.S.C. § 2244(d), and includes the text
of § 2244(d); Pryor provided no explanation for the
late filing, except the words “NOT BARRED.” (Dkt. 1 at
11.) . . . .
[N]othing in Petitioner’s submissions insinuates that
the statute of limitations is governed by a provision
other than § 2244(d)(1)(A), that Pryor was prevented
from asserting his claims by extraordinary
circumstances, or that he exercised reasonable
diligence in pursuing his rights. Under these
circumstances, equitable tolling of the statute of
limitations does not appear to be warranted. And
because nothing indicates that the interests of justice
would be better served by addressing the merits of the
Petition, see Day, 547 U.S. at 210, this Court will
dismiss the Petition as time barred.
(Dkt. 3 at 10-11.)
However, because this Court could not rule out the
possibility that Petitioner might have valid grounds for
statutory and/or equitable tolling, or that he might wish to
argue that the Petition is not time barred, this Court granted
Petitioner 30 days to file a written statement setting forth
tolling arguments, or otherwise arguing that the Petition is
timely.
This Court noted in a footnote that Petitioner’s
5
argument “must account for the time between April 24, 1997 (when
the 365-day grace period expired), and September 9, 2008 (when
Petitioner filed his second state PCR petition and statutory
tolling presumably came into play, if the PCR was “properly
filed”).”1
(Dkt. 2 at 13 n.2.)
On April 24, 2012, the Clerk docketed Petitioner’s “REBUTTAL
OF DISMISSAL,” together with a motion to reopen.
At this time,
this Court will reopen the file, vacate the dismissal of the
Petition, and determine the timeliness of the Petition.
II.
A.
DISCUSSION
Statute of Limitations
The limitations period runs from the latest of
(A) the date on which the judgment became
final by the conclusion of direct review or
the expiration of the time for seeking such
review;
(B) the date on which the impediment to
filing an application created by State action
in violation of the Constitution or laws of
the United States is removed, if the
applicant was prevented from filing by such
State action;
(C) the date on which the constitutional
right asserted was initially recognized by
the Supreme Court, if the right has been
1
This Court also directed Pryor to account for the 435 days
between the Appellate Division’s opinion on December 22, 2010,
and March 1, 2012, the date he executed the Petition. However,
because Petitioner has advised this Court that the New Jersey
Supreme Court denied certification in February 2012, he need only
account for the additional time between that date and March 1,
2012.
6
newly recognized by the Supreme Court and
made retroactively applicable to cases on
collateral review; or
(D) the date on
of the claim or
been discovered
diligence . . .
which the factual predicate
claims presented could have
through the exercise of due
.
28 U.S.C. § 2244(d)(1).
In this case, Pryor argues that the statute of limitations
does not apply to him because he was convicted in 1984, 12 years
before Congress enacted the AEDPA, and that applying § 2244(d) to
him would be unconstitutional.
These arguments were rejected by
the Third Circuit in Burns v. Morton, 134 F.3d 109 (3d Cir.
1998).
In that case, Burns’s conviction became final before
April 24, 1996, the effective date of the one year statute of
limitations in § 2244(d).
Burns handed his § 2254 petition to
prison officials for mailing to the district court on April 22,
1997.
The district court dismissed the petition as time barred.
The Third Circuit reversed, finding that the statute of
limitations applied to Burns’s petition, even though his
conviction became final prior to its enactment, but the petition
was timely because it was filed within one year of April 24,
1996:
Section 2244(d) became effective on April 24, 1996,
when the Antiterrorism and Effective Death Penalty Act
of 1996 was signed into law . . . . Several other
courts of appeals have held that applying § 2244(d) [to
bar petitions by petitioners whose convictions became
final prior to April 24, 1996], would impermissibly
attach new legal consequences to events completed
7
before its enactment . . . . These courts have
fashioned a rule that no petition filed on or before
April 23, 1997 - one year from the date of AEDPA’s
enactment - may be dismissed for failure to comply with
§ 2244(d)(1)’s time limit . . .
We agree that applying § 2244(d)(1) to bar the filing
of a habeas petition before April 24, 1997, where the
prisoner’s conviction became final before April 24,
1996, would be impermissibly retroactive . . . . We
reject the notion that petitioners whose state court
proceedings concluded before April 24, 1996, should be
afforded less than one year with notice. Accordingly,
we hold that habeas petitions filed on or before April
23, 1997, may not be dismissed for failure to comply
with § 2244(d)(1)’s time limit.
Burns, 134 F.3d at 111 (citations and internal quotation marks
omitted).
Although the Supreme Court has not squarely decided the
issue, the Court recognizes that, in addition to the dates set
forth in § 2244(d)(1) through (d)(4), “[a] fifth option supplied
uniformly by the courts of appeals gave prisoners whose
convictions became final before AEDPA a 1-year grace period
running from the new statute’s effective date.”
Johnson v.
United States, 544 U.S. 295, 300 (2005).
This Court rejects the notion that the statute of
limitations does not apply because Pryor’s conviction became
final prior to the effective date of the AEDPA.
F.3d at 111.
See Burns, 134
Under Burns, § 2244(d) applies to Pryor’s Petition,
and he had a one-year grace period (April 24, 1996, through April
23, 1997) to hand his § 2254 Petition to prison officials for
mailing to the Clerk.
Unless statutory or equitable tolling is
8
warranted, Pryor’s § 2254 Petition is untimely because he did not
hand it to prison officials for mailing before April 25, 1997
(but waited until March 1, 2012).
See Douglas v. Horn, 359 F.3d
257, (3d Cir. 2004) (where petitioner’s conviction became final
prior to April 24, 1996, and tolling is not warranted, § 2254
petition filed beyond one-year grace period ending April 23,
1997, was untimely).
B.
Statutory Tolling
Section 2244(d)(2) of Title 28 requires statutory tolling
under the following circumstances:
“The time during which a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim
is pending shall not be counted toward any period of limitation
under this subsection.”
28 U.S.C. § 2244(d)(2).
Pryor does not argue that he is entitled to statutory
tolling.
Because Pryor did not have any state post-conviction or
other collateral review pending at any time from April 24, 1996,
through April 23, 1997, statutory tolling is not applicable.
C.
Equitable Tolling
Pryor argues that he is entitled to equitable tolling
because he was not aware of the one-year statute of limitations,
and there was excusable neglect for his failure to comply with
the one-year grace period.
Specifically, he states that he “was
NEVER advised, by anyone, at any time, regarding the 1 year
9
limitation, due to the A.E.D.P.A.” and, “[i]f there were not
extenuating circumstances (read as Excusable Neglect/Exceptional
Circumstances), the New Jersey Superior Court, Law Division, of
Salem County, would have disallowed petitioner’s second PCR,
filed in 2008, 24 years after the initial case was heard in
1984."
(Dkt 4 at 6.)
The AEDPA statute of limitations is subject to equitable
tolling.
See Holland v. Florida, 130 S. Ct. 2549, 2560 (2010);
Urcinoli v. Cathel, 546 F. 3d 269, 272 (3d Cir. 2008).
“A
statute of limitations ‘can be tolled when principles of equity
would make [its] rigid application unfair.’”
Urcinoli, 546 F. 3d
at 272 (quoting Shendock v. Dir., Office of Workers’ Comp.
Programs, 893 F. 2d 1458, 1462 (3d Cir. 1990)).
“Generally, a
litigant seeking equitable tolling bears the burden of
establishing two elements:
(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way.”
Holland, 130 S. Ct. at 2562 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)); see also LaCava v. Kyler,
398 F.3d 271, 275-276 (3d Cir. 2005).
“There are no bright lines
in determining whether equitable tolling is warranted in a given
case.
Rather, the particular circumstances of each petitioner
must be taken into account.”
Pabon v. Mahanoy, 654 F.3d 385, 399
(3d Cir. 2011).
10
Extraordinary circumstances have been found where “(1) the
defendant has actively misled the plaintiff; (2) if the plaintiff
has in some extraordinary way been prevented from asserting his
rights; or (3) if the plaintiff has timely asserted his rights
mistakenly in the wrong forum.”
Urcinoli, 546 F. 3d at 272
(quoting Satterfield v. Johnson, 434 F. 3d 185, 195 (3d Cir.
2006) (internal quotation marks omitted).
In this case, Petitioner seeks equitable tolling because he
did not know of the one-year statute of limitations and because
the New Jersey courts allowed him to file his second petition for
post-conviction relief 21 years after his conviction became
final.
However, “a garden variety claim of excusable neglect . .
. does not warrant equitable tolling.”
Holland, 130 S. Ct. at
2564 (citations and internal quotation marks omitted).2
This
Court finds that neither Petitioner’s ignorance of the
limitations period nor his excusable neglect is an extraordinary
circumstance warranting equitable tolling.
Petitioner nevertheless argues that this Court should not
dismiss the Petition as time barred because constitutional
2
Compare Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)
(rejecting the argument that “counsel’s mistake in miscalculating
the limitations period entitles [a petitioner] to equitable
tolling. If credited, this argument would essentially equitably
toll limitations periods for every person whose attorney missed a
deadline”) with Holland v. Florida, 130 S.Ct. 2549, 2562 (2010)
(“an attorney’s failure to satisfy professional standards of
care” can warrant equitable tolling where the attorney misconduct
is egregious).
11
violations occurred in his case.
Specifically, he states that
counsel didn’t do his job properly, the judge “took into account
arrests that were never prosecuted, or [were] later dismissed,”
“many court rules were broken or ignored;” the New Jersey courts
have “misinterpreted the application of Strickland/Fritz, and how
to use it properly in the defendant’s case.”
(Dkt. 4 at 2.)
After considering these arguments, as well as the grounds raised
in the Petition, this Court finds that reaching the merits of the
Petition is not in the interest of justice, and will dismiss the
Petition as time barred.
D.
See Day, 547 U.S. at 210.
Discretion to Sua Sponte Raise Timeliness
Finally, this Court will consider whether the Supreme
Court’s recent decision in Wood v. Milyard, 132 S.Ct. 1826
(2012), prevents this Court from sua sponte dismissing the
Petition as untimely.
In Day v. McDonough, 547 U.S. 198, 209
(2006), the Supreme Court “h[e]ld that district courts are
permitted, but not obliged, to consider, sua sponte, the
timeliness of a state prisoner’s habeas petition.”
In Wood, the
District Court did not consider timeliness and ruled on the
merits after the State had twice informed the District Court that
the State “‘will not challenge, but [is] not conceding’ the
timeliness of [the] petition.”
Wood, 132 S.Ct. at 1834.
The
Tenth Circuit nevertheless sua sponte raised the statute of
limitations on appeal and held that the petition was untimely.
12
The Supreme Court found that the Tenth Circuit had abused its
discretion:
“Although a court of appeals has discretion to
address, sua sponte, the timeliness of a habeas petition,
appellate courts should . . . abstain from entertaining issues
that have not been raised and preserved in the court of first
instance[, particularly] when the appellate court itself spots an
issue the parties did not air below, and therefore would not have
anticipated in developing their arguments on appeal.”
S.Ct. at 1834.3
Wood, 132
Citing Day, the Supreme Court nevertheless
confirmed that district courts “have the authority - though not
the obligation -” to sua sponte consider timeliness, even where
the State negligently conceded that the petition was timely,
provided the petitioner is accorded a fair opportunity to present
his position.
Id.
This Court has the discretion to sua sponte consider the
timeliness of the Petition, see Day, 547 U.S. at 209 (“we hold
that district courts are permitted, but not obliged, to consider,
sua sponte, the timeliness of a state prisoner’s habeas
petition”); Kilgore v. Attorney General of Colorado, 519 F. 3d
1084, 1089 (10th Cir. 2008) (court may not sua sponte dismiss a §
2254 petition as time barred on the ground that it lacks
3
“When a court of appeals raises a procedural impediment to
disposition on the merits, and disposes of the case on that
ground, the district court’s labor is discounted and the
appellate court acts not as a court of review but as one of first
view.” Wood, 132 S.Ct. at 1834.
13
sufficient information to establish timeliness, but may do so
where untimeliness is clear from the face of the petition); Long
v. Wilson, 393 F. 3d 390, 402-03 (3d Cir. 2004) (court may
examine timeliness of petition for a writ of habeas corpus sua
sponte), and Wood v. Milyard does not limit this Court’s
discretion.
See Abbott v. New Jersey, 2012 WL 3020030 (D.N.J.
July 24, 2012) (after Wood v. Milyard, untimely habeas petition
may be dismissed sua sponte, provided district court gives
petitioner notice and opportunity to respond); Johnston v.
Chappell, 2012 WL 2501158 (N.D. Cal. June 27, 2012) (same).
E.
Certificate of Appealability
The AEDPA provides that an appeal may not be taken to the
court of appeals from a final order in a § 2254 proceeding unless
a judge issues a certificate of appealability on the ground that
“the applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
This Court
denies a certificate of appealability because jurists of reason
would not find it debatable that dismissal of the Petition as
untimely is correct.
See Slack v. McDaniel, 529 U.S. 473, 484
(2000) (“When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
14
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling”).
III.
CONCLUSION
Based on the foregoing, the Court reopens the file, vacates
the Order dismissing the Petition, dismisses the Petition as
untimely after considering Petitioner’s arguments, and denies a
certificate of appealability.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief Judge
DATED:
July 31
, 2012
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